High Court Hypocrisy

The Supreme Court banned a buffer zone around abortion clinics, but left its own intact.

Police officers spread out on the plaza in front of the U.S. Supreme Court as anti-abortion activists march on the 40th anniversary of the Roe v. Wade decision, in Washington, Jan. 25, 2013.

It's hard to defend getting rid of clinic buffer zones when the court won't abandon its own.

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Thanks to the U.S. Supreme Court, anti-abortion protesters can no longer be kept out of a 35-foot “buffer zone” around women’s clinics where abortions are performed. However, those same protesters still cannot have their say near the very court that made the ruling.

The high court ruled this week that Massachusetts’ law allowing clinics to have such a protest (or harassment) free zone was unconstitutional, since it violated the demonstrators’ First Amendment rights to speak their minds. The majority decision said the issue wasn’t about abortion at all, but about whether people could be muzzled on a public street. (A couple of jurists disagreed, saying the Massachusetts law indeed targeted anti-abortion protesters.)

[VOTE: Was the Supreme Court Right to Strike Down Abortion Buffer Clinic Zones]

It’s a difficult issue, because (especially in the case of women seeking abortions), one person’s speech is another person’s harassment. The court upheld the very American idea that people should be allowed to say what they like, no matter how unwelcome it might be to others. But at what point does the free speech become a barrier to a woman seeking to exercise another right, one upheld by the courts, to have an abortion? The idea that the individuals preaching against abortion on the street are merely “counseling” women is the utmost insult. A woman who decides to have an abortion (and not every woman walking into a women’s clinic is having an abortion; lots of women get their annual Pap smears there) has thought about it already, and most likely has already discussed it with her partner and perhaps a medical professional, as well. The idea that a complete stranger presumes to know better – and assumes that the woman in question is some kind of mindless fool who couldn’t possibly know what she is doing – is beyond arrogant.

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But in the case of the Supreme Court plaza, there is no issue of actually preventing the justices from doing their job. Yet assemblies and demonstrations are banned on court property regardless. There is a defense of this rule – government property should be for the running of the government, and protesters certainly manage to have their say a few feet away from the actual court property area. And, unlike in the case of women seeking abortions, surely none of the protesters believes the slogans shouted are going to change the minds of the justices. It would, after all, be pretty appalling if the members of the court abandoned case law and constitutional scrutiny in favor of whose shouts outside the court were the loudest.

But it’s hard to defend getting rid of a “buffer zone” around women’s clinics when the court won’t abandon its own buffer zone. The high court indeed sounded a strong defense this week of the First Amendment. It’s just a little inconsistent with how it views the right.